Up in the Air

Last November, in an empty gymnasium in Brookline, Massachusetts, Lisa Ellman, MPP/JD’05, was rehearsing for her upcoming TEDx talk on the domestic use of unmanned aerial vehicles (UAVs), more commonly known as drones. Nearby was a small quadcopter, which at Ellman’s command was to take flight and attempt to crash into her in a dramatic demonstration of its state-of-the-art collision avoidance software – one of a number of safety features under development that, Ellman says, will soon enable drones to fly among us every day, performing any number of vital tasks. But when Ellman summoned the drone, things didn’t go quite as planned. “It came straight at me and was not slowing down!” she recalled later. “I dropped to the ground and screamed, and the operator was like, ‘Oh, we forgot to turn on the collision avoidance software!’” Ellman laughs about it now, but the incident serves as a comic illustration of a deadly serious debate: Are drones safe enough to operate domestically? And even if the answer is yes, should they?

For the past several years, Ellman, 37, has been helping to write the rules of the road for drones. The walls and shelves of her K Street office at the Washington, D.C., law firm of McKenna Long & Aldridge are adorned with mementos from the nearly six years she spent working in the Obama administration, where, in 2013, she was tasked with helping the federal government integrate drones into national airspace. Since leaving government last year, she has continued to play an influential role as co-chair of McKenna’s Unmanned Aircraft Systems (UAS) Practice Group. The firm represents clients who want to deploy drones domestically, as well as others who are concerned about protecting their privacy from all-seeing eyes hovering above.

Reconciling these opposing impulses – enthusiasm for new technology versus fears about what it might bring – is at the center of Ellman’s work. The answer, she says, is to persuade policymakers and innovators to collaborate, protecting the public good while encouraging technological advance, a concept she calls “polivation.” It’s a simple idea, perhaps, but a difficult one to implement. As a rule, policy is slow, innovation fast, and meeting the imperatives of both requires patience and finesse. “Innovators get really frustrated with the slow pace of policymaking,” Ellman says, “and there’s a tendency to want to just move forward and leave government behind.... The key is for innovators to find champions in government and for champions in government to find those innovators and then work together to really move things forward.”

Ellman’s instinct for policy took hold at an early age. Her father an architect, her mother a schoolteacher, she and her two brothers grew up in the leafy suburbs of Detroit. Her earliest policy document, drafted at age eight, was a Magna Carta for the Ellman household, which levied monetary penalties for, among other things, “hitting, pinching” (20 cents), “name calling” (10 cents) and “wild behavior” (10 cents). But her real political awakening came in high school, when her dad, running for the local school board, appointed her his campaign manager. “I kind of caught the political bug,” she remembers, and was soon attending debates and knocking on neighbors’ doors.

In 2001, a year after graduating from the University of Michigan, Ellman came to the University of Chicago to study law but soon decided to seek a dual degree from Harris. “I liked law school,” she says, “but it felt like we were looking at all these cases and the laws just didn’t make any sense. And I thought, why can’t we just change the law? So I enrolled in the policy school.” (She’ll return in June to receive the Rising Star Award at the second annual Chicago Harris Alumni Awards Ceremony and Reception.) Ellman’s constitutional law professor was a young state senator named Barack Obama, whose class met at 8:30 a.m., too early for most students. Around the same time, she ran unopposed for president of the Law School Democrats, for which Obama served as the faculty adviser. In 2007, Obama asked his former student and mentee to leave her job at a Chicago law firm and help him run for president. “I thought for sure that I’d be coming back, partly just because what are the chances that someone you know becomes president of the United States?” she recalls. “I just assumed that it was not going to happen. It changed my life completely.”

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Drones originated as weapons of war. The basic technology preceded even the Wright brothers: both sides during the American Civil War experimented with dropping bombs from hot-air balloons, and in the 1880s, the first aerial photographs were taken by an Englishman who had attached a camera to a kite. Near the end of World War I, the U.S. Army planned to deploy a fleet of pilotless biplanes that would shed their wings and strike targets with explosives, but the armistice came first. The same principle, however, later achieved deadly effect in the form of Nazi Germany’s V-1 and V-2 rockets. Decades of development, primarily by American and Israeli military technologists, ultimately gave rise to the Predators, Reapers and Global Hawks of today.

But in case you haven’t noticed, drones have already migrated from the battlefield to your local park. Quadcopters, like the four-rotor flying robot that Ellman dodged during her TEDx rehearsal, were the “It” gift last Christmas. Amazon reportedly sells 10,000 of them a month, ranging in price from $30 to more than $3,000. Prefer to build one yourself? Wired’s Chris Anderson, who co-founded 3D Robotics, a leading recreational drone manufacturer based in San Diego, says that for $17, you can purchase a microchip that includes an accelerometer, a gyroscope, a magnetometer, a temperature gauge and a microprocessor – virtually everything you’d need for your homegrown drone.

Drones, however, are rapidly outpacing the weekend-flyer crowd. Possible applications for them abound, and not just in the imagination of technology futurists. A diverse group of interests are clamoring for Federal Aviation Administration (FAA) approval to fly drones in the United States for a variety of purposes: inspecting pipelines and the undersides of oil platforms for energy companies; spraying crops and monitoring growth for farmers; assisting journalists with reporting; capturing unusual perspectives for filmmakers; helping high-end real estate agents to sell luxury properties; and dropping off packages for companies like Amazon and Google (drones delivering drones!).

Together, these potential uses point to the birth of a multi­billion-dollar industry. In March 2013, the Association for Unmanned Vehicle Systems International predicted that the domestic drone market will be valued at more than $82.1 billion by 2025. Further, drones will have created at least 100,000 new jobs, many of them in the manufacturing sector, which will employ college graduates with technical know-how at relatively high salaries. Meanwhile, an estimated $482 million in taxes will flow into state coffers.

All that stands in the way is federal law. Commercial drone flights remain illegal without special permission from the FAA. “If I use a drone in a park and take a picture of myself, and I post it on Facebook, that’s totally OK,” Ellman explains. “But if I want to sell that photo for $10 because it’s just such a great picture, then it was an illegal flight.” As developments in drone technology have accelerated, so too have efforts by industry lobbyists to change the law. According to OpenSecrets.org, which tracks the influence of Washington lobbyists, spending by groups pushing for drone legalization has exploded from $35 million in 2011 to $184 million last year. Recreational drones are already subject to the same restrictions that have governed model airplanes since the 1980s – remain below 400 feet, don’t fly in public areas and stay at least five miles away from airports. But commercial drones pose different risks and will therefore require a new set of regulations. “They have been begging for rules!” says Melissa Rudinger, vice president for government affairs at the Aircraft Owners and Pilots Association. “I’ve been a lobbyist for aviation for more than 20 years, and I’ve never seen an industry lobby to be regulated the way they have.... They don’t want to see a bad accident taint their industry just as it’s getting off the ground.”

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Before Ellman left the White House, the FAA wrote the proposed rules for the integration into national airspace of drones weighing 55 pounds or less – they were released for public comment this past February. (A separate set of rules for large drones is also in the works.) The FAA would limit small drones to daytime flights at an altitude of 500 feet or less and a maximum speed of 100 miles per hour. Operators would have to be at least 17 years old; they would also have to pass a written exam every two years and pay a $200 registration fee. Even more significantly for potential commercial users like Amazon, drones would be prohibited from flying near people not directly related to their operation and would have to remain within the operator’s line of sight. Ellman expects these last two limitations to ease over time, but for now, at least, Amazon’s envisioned fleet of autonomous delivery drones has been grounded.

American skies play host to some 70,000 flights every day, and already reports of encounters between drones and commercial aircraft have risen dramatically. According to a June 2014 report in The Washington Post, drones came dangerously close to passenger planes on at least 15 occasions in the past two years, with several pilots sighting them at altitudes in excess of 5,000 feet. Adam Gibson of Venice Beach, California-based Ctrl.Me Robotics, which trains drone operators, chalks these incidents up to human error. In all likelihood, these are cases in which operators failed to calibrate their equipment correctly, he says, and had “something that just flew away from them.” You need look no further than the numerous drone-crash compilations on YouTube for visual confirmation of the ineptitude of many amateur drone operators. Quadcopters don’t weigh very much and carry no combustible fuel, so crashes rarely amount to more than simple embarrassment. But a collision with a piloted aircraft at altitude could be a much more serious matter. “If it goes through an engine or a windshield, you have the potential for major damage and the potential for fatalities,” says Rudinger. “We are very concerned. We don’t want rogue operators out there who haven’t taken the time to go and educate themselves, and who are willing to flaunt the rules.”

Also concerned are privacy advocates, who take a grim view of the world that the widespread presence of drones could inaugurate. After all, the risks drones pose to physical safety are roughly equivalent to those of model airplanes – not a particularly controversial technology. The difference lies in how drones are used. Already, according to the Electronic Privacy Information Center (EPIC), drones are being outfitted with cameras, thermal imaging, license plate readers and laser radar – and facial recognition and biometric tracking based on height, gender and skin color may be just around the corner. Combine these capabilities with the abundance of low-cost drones available online, and you have what some privacy groups see as the beginning of an era of unprecedented intrusion into our personal lives. “There are no longer the economic and technical barriers to aerial surveillance that there once were, making the prospect of constant aerial surveillance of the public possible,” says EPIC’s Jeramie Scott. “The implications for the use of drones in the national airspace with respect to privacy are pretty clear, raising the risk to privacy in a way that clearly needs to be addressed.”

Despite pressure from privacy groups, the FAA has so far declined to incorporate their concerns into its proposed drone regulations. “There are federal, state and common law protections for individual privacy” already on the books, says an FAA spokesperson, and “those laws may provide recourse for a person whose privacy may be affected.” But such assurances fail to appease groups like EPIC, which continues to push for privacy rules specifically designed for the use of drones.

As with aviation safety, Ellman has played an integral role in the privacy debate. While working in the Obama administration, she helped draft a presidential memorandum, released along with the FAA’s proposed rules in February, that directly addresses privacy concerns. It requires federal agencies to make public their drone-use policies and to disclose how those drones have been deployed and what steps have been taken to safeguard the information they obtained. In addition, the memorandum mandates the establishment of a “multi-stakeholder engagement process” that will bring together representatives from government and private industry to come up with voluntary guidelines for the protection of privacy – Ellman’s “polivation” in action. “There are already privacy laws and rules in place,” she says. “The question is, are there gaps such that drones create unique privacy concerns, and if so, how do we fill those gaps? That will be the conversation.”

What the end result may be is anyone’s guess, but whatever happens, bet on Ellman playing a significant role. It may be several years before the FAA approves the commercial use of small drones, and perhaps a decade or more before large drones begin operating domestically. But make no mistake, drones are here to stay, and the question of how to integrate them into our skies and into our lives is one that will require careful consideration. “I think I will be working in this area for a long time,” Ellman says. “This is a hugely growing industry, and we’ve just hit the tip of the iceberg in terms of seeing what the capabilities of drones are.... There’s a use for them in pretty much every industry.”